Key decisions go before judges

The presidential election is swinging full speed into litigation mode, raising for the first time in American history the possibility that judges will play a key role in determining who is the next president of the United States.

That is the ultimate implication as lawyers for George W. Bush today try to convince a federal judge here to order county election officials in Florida to stop a special hand recount of ballots cast in last week's presidential election.

US District Judge Daniel Middlebrooks, a Clinton appointee, must decide whether to allow the manual recount to continue as requested by lawyers for Al Gore, or whether the post-election hand recounts in four counties amount to an unconstitutional devaluing of Republican and other votes, as claimed by lawyers for Governor Bush.

Also on the horizon is the legal issue of whether a state judge should order a revote in heavily Democratic Palm Beach County after some 19,000 ballots were invalidated due to apparent voter confusion. And the Rev. Jesse Jackson has suggested a need for possible federal civil rights suits in the wake of what he says were significant irregularities that prevented some Floridians from voting.

Both the Bush and Gore campaigns are marshaling small armies of highly talented lawyers in anticipation of these and other legal battles. The high-stakes hearing in Miami today marks the first shot in what may explode in the weeks ahead into all-out legal warfare.

"What is scary about this is that the atmosphere is so highly charged that reasonable judgments can sometimes get clouded," says Bruce Rogow, a lawyer representing Palm Beach County Elections Supervisor Theresa LePore. "It is important that everyone take a step back."

With a roughly 300-vote difference between Mr. Bush and Mr. Gore in the critical Florida election, any legal action that changes the status quo will likely help one candidate while hurting the other.

For example, Democratic officials are hopeful that a manual recount of ballots in four counties that are Democratic strongholds will identify large numbers of Gore votes that were misread or otherwise rejected by machines that automatically count the ballots.

Such manual recounts are legal under Florida law, but Bush supporters insist that only recounts by machine should be permitted. "Machines are neither Republicans nor Democrats and therefore can be neither consciously nor unconsciously biased," says James Baker, the former secretary of State and Bush campaign troubleshooter in Florida.

Warren Christopher, the former secretary of State and Gore's troubleshooter in Florida, counters that hand recounts are under way where voting anomalies appeared. "This is a procedure called for by Florida law," he says. "They are checking the machine count to make sure it was accurate."

Bush maintained his slim lead during the machine recount last week. And Bush supporters believe he will receive a majority of absentee ballots expected to arrive from overseas by Friday.

They want any further recount efforts halted pending the return of the overseas absentee ballots and certification of the results.

Gore supporters have their own ideas. Rather than relying on the neutral ability of a machine to read ballots and possibly determine the outcome of the election, they want election officials in key Democratic counties to physically inspect ballots to determine whether any rejected or unread ballots actually show indications that might be interpreted as a valid vote.

This must be done on a ballot-by-ballot basis, and it raises questions about the discretion of local election officials, most of whom are Democrats, to decide which votes to count and which to disqualify. Such discretion and expertise is necessary, Gore supporters say, to ensure that all valid voters have a voice in the selection of the president.

Bush officials see it as an attempt to use a legal technicality to change the outcome of the election after the fact. And they warn that there is no uniform way to decide which votes to count and which to discard when human judgment is relied upon.

Instead, they say, by adopting a new standard of what is an acceptable ballot, using a criteria the machine count did not, the officials doing manual recounts are creating a privileged group of voters - those fortunate enough to have their votes inspected by hand.

"The votes of citizens across the State of Florida will be unconstitutionally diluted if [election officials] conduct a manual recount of only select ballots in portions of four heavily Democratic counties," writes Marcos Jimenez, a lawyer for the Bush campaign in his legal brief to Judge Middlebrooks. "Simply stated, under Florida's scheme, identical ballots in two different counties will be treated differently."

Mr. Rogow defends the manual recount process. "If anyone was unhappy with the votes in other counties, they could have called for a recount," he says.

Under Florida law, candidates have 72 hours after an election to call for a manual recount. The Gore campaign did so in four counties - Palm Beach, Broward, Volusia, and Miami-Dade.

In what may emerge as an election-losing miscalculation, the Bush campaign objected to the hand recounts, but failed to request similar recounts in Republican strongholds prior to the expiration of the law's 72-hour deadline.

The result is that, if Middlebrooks permits the hand recounts to continue, election officials in four Democratic counties may identify enough uncounted Gore ballots to overtake Bush and create a wide enough margin to outpace overseas absentee votes that might otherwise bolster a Bush lead.

Gore supporters say that the same recount provisions were available to the Bush campaign, and that it is not unfair if the Bush campaign failed to make use of an opportunity permitted under state law to boost their own returns.

"This is not some secret piece of legislation in Florida," William Daley, chairman of the Gore campaign, told reporters in Washington. "The law is the law."